Had
it been possible for one to institute different suits, having identical subject
matter, in different courts, the result would have been nothing less than a
chaos. However, Code of Civil Procedure, 1908 (“CPC”), takes care of this problem.
Section 10 of CPC provides that:
“No Court shall proceed......any
suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit......”
Under
Section 10 of CPC, multiplicity of proceedings is intended to be avoided, i.e.,
for its application, the subject matter in a subsequent suit should be similar.
Hence, Section 10 will not apply where a few of the matters in issue are common
and will apply only when the entire subject-matter in controversy is same. In
other words, the matter in issue is not equivalent to any of the questions in
issue.[1]This
proposition also finds support from the words "directly and substantially
in issue", which have been used in contra-distinction to the words
"incidentally or collaterally in issue" [Supreme Court].[2] As
far as the word “matter in issue” is concerned, according to Delhi High Court,
it means all disputed material questions
in the subsequent suit which are directly and substantially in question in the
previous suit.[3]Hence,
according to the court, these are material
questions which have to be looked into, and not any question. However, in another case, Delhi High Court held that it
is not the identity of the main issue or some of the issues, but the identity
of the matter which is the determining test.[4] In
other words, it is not the identity of the cause of action but the matters in
issue involved in the subsequent suit and the previous suit.[5]
According
to the Supreme Court, Section 10 has been construed by the courts as not a bar
to the passing of interlocutory orders such as an order for consolidation of
the later suit with the earlier suit, or appointment of a Receiver or an
injunction or attachment before judgment.[6]
Delhi High Court has, in
Smt. Meena Bhandari v. Smt. Krishna
Kumari & Ors,[7]
after considering various judgments of the Supreme Court, laid down the following
essential conditions for the applicability of Section 10 of CPC
Thus, there are four essential
conditions for attracting the application of Section 10, C.P.C.
(1) That the matter in issue in the
second suit is also directly and substantially in issue in the first suit; (2)
that the parties in the second suit are the same or parties under whom they or
any of them claim litigating under the same title; (3) that the Court in which
the first suit is instituted is competent to grant the relief claimed in the
subsequent suit; (4) that the previously instituted suit is pending (a) in the
same Court in which the second suit is brought, or (b) in any Court in India,
or (c) in any Court beyond the limits of India established or continued by the
Central Government, or (d) before the Supreme Court.
The
object of Section 10 is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits between the same parties in respect of
the same matter in issue.[8]
The
section enacts merely a rule of procedure and a decree passed in contravention
thereof is not a nullity; hence, a court can decide relevant issues where a
subsequently instituted suit can be decided on purely legal points without
taking evidence.[9]
The
provisions of Section 10 do not become inapplicable on a Court holding that the
previously instituted suit is a vexatious suit or has been instituted in
violation of the terms of the contract.[10] Even
in a situation when Section 10, C.P.C. does not strictly apply, for ends of
justice, suit may be stayed under Section 151, C.P.C.[11]Interestingly,
Section 10 is also applicable to the summary suits which are to be tried by the
special procedure the laid down in Order XXXVII of the CPC.[12]
Delhi
High Court has interpreted the decision of Supreme Court, in Gupte Cardiac Care Centre & Hospital vs.
Olympic Pharma Care (P) Ltd,[13]
thereby acknowledging that the test of 'directly and substantially in issue',
as per Section 10 of the Code of Civil Procedure, is to see: whether the two
suits arise out of the same transaction.[14] Section
10 cannot be interpreted to hold that since only proceeding with the trial of
issue or suit is restricted by Section 10, C.P.C., therefore, it impliedly
accepts maintainability of more than one suit by one plaintiff.[15]
For
the application of Section 10, it is not sufficient that the parties are same
or the subject-matter of the suits is same but the issues involved therein also
should be same or substantially same and the relief which has been sought by
the plaintiff in both the suits also should be substantially same.[16]
Delhi High Court has also
differentiated between Section 10 & Section 11 of CPC, thereby holding
that:
“The difference between section 10
and section 11 of the Code of Civil Procedure is well known. In section 10 of
the Code of Civil Procedure the matter in issue in the earlier instituted suit
and the subsequently instituted suit should be directly and substantially in
issue in the previously instituted suit. Under section 11 of the Code of Civil
Procedure mere pendency of the earlier suit which is not material but the civil
suit should have been heard and finally decided between the parties.” [17]
As far as the
applicability of explanation to Section 10, in relation to foreign courts, is concerned,
Delhi High Court has held that:
“With due respect, we cannot concur
with the reasoning that Explanation to Section 10 of the Code of Civil
Procedure would operate conversely to enable a foreign court to assume
jurisdiction in respect of a cause of action which is pending adjudication in
this country.”[18]
As
we conclude this post, we are assuming that it would have been able to provide
a brief analysis of Section of 10. In the next post, we shall write about the
other provisions of CPC.
[3] Sagar Shamsher Jang Bahadur Rana
and Anr v. The Union of India and Ors., AIR 1979 Delhi 118, (1979) ILR 1 Delhi 492
[4] Rajdhani Flour Mills Ltd. v.Uttam
Agro Foods (India) Pvt. Ltd., 2003 (66) DRJ 111
[5] Laxmi Fruit Co. v. Gainda Ram
& Co., 1983 (4) DRJ 221, 1983 RLR 100
[8] National Institute of Mental
Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256, 259; British
Indian Corporation v. Rashtraco Freight Carriers, 1996 (4) SCC 748
[11] Atul Chandra Bora v. Assam Tea Brokers Pvt. Ltd., Gawahati, AIR 1995
Gau 73
[12] s:Maharashtra State Co-operative
marketing Federation Ltd., Bombay v. Indian Bank, Bombay, AIR1 997 Bom 186,
1996 (2) MhLj 925
[14] Filo Interior Decorations Pvt.
Ltd. V. L.K. Modi & Ors., FAO (OS) 650/2010 [Delhi High Court]
[16] Sairabi Sayyad Abdul Aziz deceased
through her L.Rs. and Ors. v. Abdul
Rashid Abdul Majid, 2002 (3) BomCR 139
[17] Maxwell Securities Pvt. Ltd. and
Ors. V. National Stock Exchange of India Limited, 2001 (60) DRJ 685
[18]Essel Sports Pvt. Ltd. (Indian
Cricket League) v. Board of Control for Cricket in India and Ors., 178 (2011) DLT
465, 178 (2011) DLT 465, (2011) ILR 5 Delhi 585
The only point to be considered is that suit should be continued in which there is more scope and judgment in that case will operated as resjudicata
ReplyDeleteThat is a valid point. However, when the material questions are the same, there is a greater possibility that the scope of both the suits will be similar, even if not the same.
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